Red Hat Opposes Software Patents in Court

Red Hat (RHAT) has joined the American Civil Liberties Union [ACLU] and others in filing friend of the court briefs in U.S. Federal Court. They both oppose the fairly new (a little more than a decade old) idea in the U.S. of granting patents on concepts instantiated in software. The case the two are getting friendly about is called In Re Bilski and is probably wending its way to the U.S. Supreme Court because the Federal Appeals Court involved has broadened the case's scope to include revisiting the late 1990s rulings considered to have enabled "software patents" in the U.S.

Interestingly (based on reading third-party information because Red Hat had not actually released its brief as of this writing, only a press release about the brief), the case in question does not appear to involve software. It appears Red Hat, like the Appeals Court, was simply looking for a place to take a stand. According to its press release (and many of its past SEC filings), Red Hat says patents stifle innovation. Red Hat applies for some patents itself but only in self-defense.

Red Hat's press release says patents stifle open source software [OSS] innovation but my research says there is nothing unique in the "open source development process" that would make it any more (or less) likely to be stifled. The press release appears to be a cry to help the "poor software artists" working somewhere in a garret, but a recent Linux Foundation study showed that most open source development, at least on the Linux kernel, is done by the same large corporations where all other software development takes place. Developers of code that will eventually be licensed under an Open Source Initiative or similar license (there really is no such thing as an open source developer) appear to have the same access to intellectual property [IP] legal advice as any other software developers. And, I believe, all developers will need to do the same due diligence relative to respecting others' IP if the industry reverts to using copyright law (which is the way it used to be in the U.S. and still is in most places outside the U.S., I think).

Investors want to begin to reconsider (or begin to consider) how to value software companies' patent portfolios. Any change in legalities would not affect the millions of dollars many of the largest IT providers make on patents related to more substantive things like hardware. And also consider that the major innovation that a change in software patent rights might kick off is burying software down in a "hardware device" often called an appliance (and then patenting the combo). The industry is beginning to go that route anyways.

As usual, the U.S. Congress is abdicating its responsibility on this issue by doing nothing and leaving the issue to the courts.

The ACLU is coming at it from an entirely different angle, a free-speech connection. I shamelessly shoehorned the reference to the ACLU into this blog post simply to get your attention and make a comment about Red Hat CEO Whitehurst's recent statement that "George Bush is good for open source" (based on Infoworld article; Red Hat will not provide a copy of his remarks). But I can't think of a comment to make other than that I am appalled by it if the Infoworld article is accurate.

Comments

[HirschFriedman]

Some years ago I was the director of Research & Development for Cameras for Indusrty, Inc. (CFI), a subsidiary for RFI (Research Frontiers, Inc.) which has been listed for over thirty years. They manufactured security cameras for banks and with the patent granted for the electronic controls were far ahead of most of the competition.

It has been forty years since the patent was issued and no one has ever noticed that the circutry printed by the USDP&C could not have possibly worked. A brief review of the patent revealed that major controls shown in the patent went connected to ground with an obvious short circuit. In other words, if anyone had tried to use the device it would have gone boom. Obviously, the device worked as many were manufactured and sold. However, when the patent was reduced to print the draftsman made a major error and what was submitted to the Patent Office was totally defective. Does that tell you how little the patents submitted to the PO are examined? The patent application should have been declined since the short circuit indicated clearly in the schematic prevented the device from working.

If any person spent some time looking over many of the applications the substantial errors missed by the examiners would be an indication that the Paten Office must be more political than technical.